SECTION II.
THE TERRITORIAL WATERS 536 537
CHAPTER I.
THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA.

From what has been said in previous chapters, it is apparent that the extensive claims which were formerly made to the dominion of the English or British seas were practically abandoned in the eighteenth century, and the pretensions of other states to a similar and more effective dominion in particular seas long ago shared the same fate. It is now settled as indisputable, both by the usage of nations and the principles of international law, that the open ocean cannot be appropriated by any one Power. But it is also as firmly established that all states possess sovereign rights in those parts of the sea which wash their shores, although there is not, and has never been, universal agreement as to the precise nature of those rights, or as to the extent of the sea that may be thus appropriated. While the general movement of opinion and practice in modern times has thus been from the mare clausum to the mare liberum—from the sea held to be appropriated by particular nations to the sea under no sovereignty, but free and open to all for all purposes,—there has been another movement in the opposite direction, by which the exclusive rights of maritime states in the waters immediately adjoining their coasts have come to be more clearly recognised and definitely incorporated in international law. To this extent all maritime countries now possess a sovereignty of the sea.

It is desirable to trace the evolution of this limited sovereignty over what is now known as the territorial waters or territorial sea (also named the neighbouring, proximal, adjacent, or littoral sea—mare proximum, mare vicinum, mer territoriale, n?chstangrenzendes Meer), and to consider in 538 particular the two main aspects it presents,—first, the actual practice of nations on the one hand, and, second, the opinions of the accredited writers on international law.

The sovereignty over the so-called territorial sea has sometimes been regarded as the direct remnant of a sovereignty which was previously asserted by particular nations over whole seas or large parts of them.968 This is true in a general sense, but in tracing the historical evolution of the territorial waters it is found that the steps by which the transference was effected varied in different cases. The pretensions of Denmark, for example, to a wide dominion over the Norwegian Sea and the North Atlantic, were slowly curtailed by gradual concessions to the opposition of other Powers, so that the extensive territorial waters at present pertaining to Norway may be looked upon as the residuum of the ancient claim. The exclusive rights have persisted, while the area over which they are exercised has dwindled. In like manner, the equally extensive territorial waters of Sweden may be regarded as an abridgment of her old claims in the Baltic. The same process may have operated in the case of Spain and Portugal, both of which Powers now claim maritime sovereignty to a distance of six miles from their coasts; but here the successive stages of contraction are not obvious. The territorial sea now held to pertain to Great Britain, so far as it has been defined, did not originate in this way, by direct descent from the old claim to the dominion of the British seas. That claim simply died out and vanished in the lapse of time, without apparently leaving a single juridical or international right behind it. The British territorial waters, as usually defined, are of modern origin, and were derived from the international jurisprudence of the Continent, and especially from the doctrine of Bynkershoek, to be referred to later.

Even during the time when some nations were asserting a wide maritime dominion, and other nations were opposing such pretensions, there was a general recognition that every maritime state was entitled to exercise jurisdiction over some extent of the neighbouring sea. This was admitted by the most thoroughgoing advocates of the mare liberum, as by Grotius himself, and it was acknowledged by the common usage of 539 nations. The rights exercised by the crown of England, for instance, in the so-called King’s Chambers in the seventeenth century were apparently not challenged by foreign Powers. But while the sovereign rights of a state over a part of the adjacent sea were recognised by the usage of nations and the opinions of publicists, there was no agreement as to the extent which might be appropriated, and various limits or boundaries have from time to time been proposed or adopted, by which the sea pertaining to a state might be divided off from that which was open and free to all. From an early date attempts were made by jurists to discover some general principle or to lay down rules which might be applied in all such cases. Some of these rules were of such a nature as to assign to states an extent of sea almost as great as any comprised under the widest claims to maritime sovereignty, and none of them received a general assent. The early English lawyers of the twelfth and thirteenth centuries, Glanville, Bracton, Britton, and “Fleta,” merely followed the Roman law with regard to the sea—that is to say, they held that it is by its nature common, like the air, and they did not suggest any limit within which the prince of the adjoining state had exclusive jurisdiction or dominion (see p. 66).

It is in the writings of the early Italian jurists, who lived after the time when Venice by force of arms had established her sovereignty over the Adriatic, that we first meet with proposals to assign legal limits to the maritime jurisdiction of the neighbouring state. Bartolus of Saxo-Ferrato, a great Perugian jurist who died in 1357, and whose authority in the middle ages was very great, declared the law to be that jurisdiction extended to a distance of one hundred miles from the coast, or less than two days’ journey from it. Within this space the ruler had power to apprehend and punish delinquents just as he had on land.969 Baldus Ubaldus, another eminent Italian jurist, who was a pupil of Bartolus and died in 1400, 540 also allotted a wide limit to the maritime rights of the prince of the adjoining territory; but he reduced the space from one hundred to sixty miles, a distance which was supposed to be equal to one day’s journey from the coast.970 The boundaries assigned by these jurists, or sometimes the equivalent of one or two days’ voyage from the coast, were very generally accepted by civilians later, although frequently with qualification, more particularly as to the nature of the rights to be exercised.971 Bartolus confined the rights of the prince to jurisdiction and the appropriation of islands, and since the distance prescribed included the space within which navigation in those times was almost entirely restricted, it is probable that the primary idea was the maintenance of order and the suppression of piracy. The underlying principle was the range of navigation from the coast or from a port, just as later it was the range of guns.

Baldus seems to have gone a step further than Bartolus by including sovereignty (potestas) as well as jurisdiction (jurisdictio) among the rights of the neighbouring prince, and he declared that the proximal sea pertained to the territory of the adjoining state, which, as in the case of Venice, had power to impose taxes for the use of it.972 Much the same opinion was expressed by Bodin, a French lawyer who wrote about the middle of the sixteenth century. When speaking of the taxes or tolls that might be imposed by a state, he said that though the sea was incapable of appropriation, it was in a measure accepted that for a distance of sixty miles from the shore the prince of the adjoining country could impose law on those who approached the coast, and that it had been so adjudged in the case of the Duke of Savoy.973 Gentilis, writing at the beginning of the next century, stated that it was laid down by the civilians that not only jurisdiction, but dominion, pertained to 541 the neighbouring state as far as one hundred miles from the coast, and even further unless the proximity of another state interfered.974

It is thus clear that long before the beginning of the seventeenth century, the original simplicity of the Roman law regarding the appropriation of the sea had undergone a change at the hands of its commentators, and that the doctrine of sovereignty or dominion over a very considerable maritime zone was widely held by jurists. But there is no evidence that either of the boundaries prescribed by Bartolus or Baldus was sanctioned by the general usage of nations. They do not appear ever to have been adopted by any state of northern or western Europe as the limits of its territorial sea or maritime sovereignty; although they were occasionally used in arguments in State Papers, as when the Earl of Salisbury justified to the Spanish Court King James’s proclamation of 1609 against unlicensed fishing, on the ground that maritime jurisdiction was “generally received to be about one hundred miles at the least into the seas.” The actual application of these large boundaries appears to have been confined to parts of the Mediterranean, where the doctrine took its rise, and where it survived till the eighteenth century.975 A more recent and a curious survival of the old boundary of Bartolus is to be found in the abortive Russian Ukase of 1821, by which foreigners were prohibited from navigating in Behring Sea within one hundred Italian miles of the coast, a claim which was revived by the United States as late as 1891.976

Another general principle for the demarcation of the seas belonging to a state had even wider currency than the above. It consisted in the transference to the sea of the principle of the mid-channel, or thalweg, as applied to rivers in apportioning the waters pertaining to either bank,—a doctrine laid down in Roman law and in vogue among the Anglo-Saxons as 542 early at least as the seventh century.977 The thalweg or mid-channel was not infrequently a boundary between contiguous states, and it was not a great step to transfer its application in theory from wide rivers and estuaries to intervening seas. In this way the mid-line in the sea lying between the coasts of two states was held to be the boundary of their respective maritime jurisdiction or sovereignty. The whole extent of a sea stretching between territories belonging to the same state, however far apart these territories might be, was looked upon as being under the sovereignty of that state. This principle, therefore, covered most extensive claims to maritime dominion, since it left hardly any part of the sea unappropriated. The mid-line as an international boundary was in the case of narrow seas logically derived from the tenets of the Italian lawyers, but there are grounds for believing that it may have been much older. An ancient example of its use in a limited way is to be found in King Cnut’s charter, in 1023, granting the port of Sandwich, in Kent, to the Church at Canterbury, by which certain rights of wreck up to the middle of the sea were conferred on the monks. After mentioning “the great sea without the port,” it provided that half of whatever was found “on this side of the middle of the sea,” and brought to Sandwich, should belong to the monks and half to the finder.978 Cnut’s charter cannot be taken as expressing any direct claim to jurisdiction to the middle line, but as wreck was a prerogative of the crown—and this is the first grant of it—the limit assigned seems to imply a differentiation of authority. More pertinent is the statement in the Mirror of Justice, a law-book written about the end of the thirteenth century, and attributed to Andrew Horn, who was Chamberlain of London in the reign of Edward II., that the king’s sovereign jurisdiction extended as far as the middle line of the sea surrounding the land.979 543 Plowden, the Elizabethan lawyer, believed that this work contained the law as it existed before the Norman Conquest, but it is now declared to contain much that is spurious. Whether that be so or not, there is no doubt that this principle of maritime delimitation was adopted by many of the lawyers and scholars of Elizabeth’s time, as Dee and Plowden.980 Even well on in the next century no less a personage than Lord Chief-Justice Hale, in an early unpublished treatise on the law of the customs and seaports, maintained that the king had “right of jurisdiction or dominion of so much at lest of the sea as adjoines to the British coast nearer then to any forren coast.”981 From internal evidence this tract appears to have been written about 1636, and the influence of Selden’s Mare Clausum, which was published at this time, and in which the mid-line was repudiated as a boundary of the British seas, was shown in Hale’s later treatise. In it the mid-line was abandoned, and the “narrow sea, adjoining to the coast of England,” was declared to be “part of the waste and demesnes and dominions of the King of England,” who had in it the double right of jurisdiction and property or ownership, “Master Selden” being referred to as authority.982

There is no evidence that the principle of the mid-channel as applied to the sea was ever homologated by an English sovereign or Government. Notwithstanding its currency in the reign of Elizabeth, we know that it was explicitly disavowed by the queen herself in diplomatic controversy with the King of Denmark, who, in virtue of it, claimed the whole of the sea between Norway and Iceland. Still earlier the English Parliament vainly petitioned the victorious Henry V., fresh from his conquests in France, to impose tribute on vessels passing through the Channel, on the ground that he possessed both shores, and therefore had a legal title to the intervening sea.983 But although the mid-line appears never to have been clearly adopted, there are two circumstances, both referring like Cnut’s charter to the Channel, which may point to its ancient usage there. One is that an important fishing-bank, the Zowe 544 or Sow, extending about one-third across the Channel between Rye and Dieppe, was recognised by France as within the English jurisdiction, and French fishermen for a very long period were in the habit of procuring licenses from the Warden of the Cinque Ports for permission to fish there (see p. 65). The other is that when the question was raised as to how far the jurisdiction of the Cinque Ports extended into the sea—in connection apparently with complaints against French fishermen towards the end of the reign of Charles II.—the Trinity House, while avowing their own ignorance, stated that the Sergeant of the Admiralty within the Cinque Ports claimed to exercise his authority “half seas over or further.”984

The methods of delimitation hitherto mentioned consisted in drawing imaginary lines in the sea, usually at a considerable distance from the coast. Another principle, which probably originated among seafaring men and was capable of being made use of in a rough-and-ready fashion, depended on the range of vision on a fair day, seawards from the shore, or usually from the sea to the land. The space of sea between the coast and the horizon, or vice versa, was regarded as belonging to the adjoining state. This was the principle adopted in Scotland, but it was not confined to that country. It was employed in olden times in England to determine whether a bay or arm of the sea was within the body of a county, inter fauces terr?, and therefore under common law, or part of the high sea and under the jurisdiction of the Admiral.985 An early instance of its adoption as a boundary of international jurisdiction is to be found in the nautical laws prescribed for the Netherlands in 1563 by Philip II. of Spain, by which it 545 was forbidden, on pain of death, for any violence to be done by reason of war, or for any other cause, to his subjects or allies, or to foreigners, on the sea within sight of the land.986 Grotius also referred to the range of vision as a boundary, when he said that the controversy respecting the freedom of the sea was not about bays or straits, or “so much of the sea as might be seen from the shore.”987 We have already seen that in Scotland the fisheries within sight of the coast, or a “land-kenning,” were claimed as belonging exclusively to the Scottish people. In this case the range of vision was from the sea to the land, and it was to be determined from the main-top of the fishing smack.988 The extent of a land-kenning was stated to be fourteen miles, and this was the distance expressed in the Draft Treaty of union in 1604, and pressed upon the Dutch by King James in 1618; but sometimes twenty-eight miles, or two land-kennings, was claimed; and it is to be noted that in the case of bays and firths the distance was measured from a base-line drawn between headland and headland. The range of vision, or land-kenning, as the boundary of the reserved fishing waters, was embodied in Scottish law as well as claimed against other nations by the Privy Council, the Parliament, and the king.989

It was also conceded to Denmark, for in 1618 the Privy Council prohibited Scottish fishermen from fishing within sight of land at the F?r?e Isles. The King of Denmark, indeed, assigned the same limit in a decree of 1691 with regard to places where he did not possess the opposite coasts.990 546 Although the principle was not formally acknowledged by the Dutch in determining their fishing on the British coasts, they agreed to adhere to it (see p. 193); and there is evidence to show that the British cruisers caused them to respect this limit, at all events in connection with the herring-fishing at Yarmouth.991 A later example of the adoption of this limit is to be found in a treaty concluded in 1740 between the Porte and the King of Naples, by which it was stipulated that neither party would permit vessels to be pursued or molested on their coasts within a distance at which ships could discern the land.992

The method of determining the extent of the territorial sea by the range of vision was vague and open to obvious objections, even though it was ascertained only on a fair day. The distance, as Bynkershoek pointed out, would vary according to the position of the observer, the keenness of his vision, the climate, and many other circumstances, and it was inapplicable to narrow seas, such as the Channel, where the opposite coasts belonged to different states. It is, however, questionable whether, under proper rules, it would have furnished a zone much less definite than that of the range of guns. It has been proposed by some modern publicists, as Rayneval, Azuni, Heffter, and Godey, as a boundary of territorial waters; and if it had been generally adopted as a principle of delimitation, there is no doubt that the equivalent distance of fourteen miles as used in Scotland would have proved more satisfactory in several respects than the ordinary limit of three miles, which was supposed to represent the range of guns.

Still less definite was another principle, if such it can be called, which was proposed as a guide in allotting the space of sea within which exclusive rights of fishing should belong to the adjacent state. Welwood, Selden, and many others, held, in opposition to Grotius and his school, that the fisheries along a coast might be exhausted or injured by promiscuous 547 fishing, and that the inhabitants of the coast had a primary right to the fructus of the adjacent sea, as against the intrusion of foreigners—a principle which lay at the root of the Scottish claims to the “reserved waters.” Sarpi, an Italian author of the early part of the seventeenth century, in a work defending the claims of Venice, formulated the opinion that the extent of territorial sea should not be fixed everywhere in an absolute manner, but should be made proportionate to the requirements of the adjoining state, without violating the just rights of other peoples. Thus a country or city which possessed large and fertile territories that provided adequate subsistence for the inhabitants, would have little need of the fisheries in the neighbouring sea, while one with small territories that drew a large part of its subsistence from the sea ought to have a much greater extent of sea for its exclusive use.993 This doctrine, though obviously difficult of application internationally, has much to recommend it on grounds of reason and justice. It is one of the fundamental principles on which Norway claims at the present day an unusually large extent of territorial sea.

With regard to bays, straits, and arms of the sea, the general usage from the earliest times has included them within the jurisdiction of the neighbouring state. They have been always regarded as differing from the sea on an open coast, the only disputes about them referring to the size of such areas that might justly be looked upon as territorial. By the old common law of England, which Hale dates as far back at least as the reign of Edward II. (1307-1327), bays, gulfs, or estuaries, of which one shore could be “reasonably discerned” from the other shore, were regarded as inter fauces terr?, and within the body of the adjacent county or counties, so that offences committed there were triable at common law. But along the coast, on the open sea, the jurisdiction of the common law extended no farther than to low-water mark; beyond that it was high sea, or altum mare, and under the jurisdiction of the Admiral.994 Here we see a sharp distinction 548 drawn between bays and the open coast, the former being included within the realm as part of the territory. It seems reasonable on many grounds that the waters lying in view between two parts of the same continuous territory should have been regarded as pertaining to that territory, and it may be noted that in early times the navigation of a vessel along a coast was conducted from headland to headland, and thus a distinction was likely to arise between the open sea lying outside a line joining the headlands, as a waterway common to all, and the sea inside the headlands as an access to the territory. The distinction was maintained from an early period with regard to international relations. Reference has already been made to the treaty arranged by Cardinal Wolsey in 1521, in which it was stipulated that English harbours, bays, rivers, and roads should be exempt from hostilities between belligerents, and to the proclamations of King James in 1604, and of succeeding sovereigns, defining the extent of the King’s Chambers, or bays, according to ancient custom, for purposes of neutrality.995 It is interesting to note that the rights exercised within the King’s Chambers, or bays, on the coasts of England referred only to neutrality and had nothing to do with fishing, while in Scotland it was exactly the opposite. The large bays and firths on the Scottish coast were reserved for fishing, without any specific reference to the rights or obligations of neutrals. The differentiation of bays and arms of the sea from the territorial belt on open coasts has persisted to the present day, both in the writings of publicists and in the practice of nations, although the introduction 549 of another principle of delimitation has tended to keep the claims to bays within moderate bounds.

The various methods of determining the territorial waters of a state referred to above were more or less arbitrary, and did not rest upon a natural basis capable of universal application. During the seventeenth and eighteenth centuries another principle was gradually evolved, and was ultimately accepted as furnishing such a natural basis, so that it may now be regarded as an established part of international law. It was, that the maritime dominion of a state ended where its power of asserting continuous possession ended. The belt of sea along the coast which could be commanded and controlled by artillery on shore thus came to be regarded as the territorial sea belonging to the contiguous state. Beyond the range of guns on shore the sea was common.

This principle was of slow growth. It did not even receive definite expression among jurists until the beginning of the eighteenth century; but as previously stated (see p. 156), the Dutch ambassadors who came to London in 1610, to endeavour to induce King James to withdraw his proclamation against unlicensed fishing, made use of it in their conferences with the English Ministers, not improbably at the instigation of Grotius. But whether or not Grotius was the person who enunciated the principle in 1610, it is in his writings that we first meet with it, although in a veiled form. It is not mentioned in Mare Liberum, but in his greater work, the Law of War and Peace, which was published in 1625, he said that a state might acquire sovereignty over parts of the sea, in regard to persons by an armed fleet, and “in regard to territory, as when those who sail on the coasts of a country may be compelled from the land, just as if they were on the land.”996 The principle of compulsion from the land is clearly enough expressed, and though Grotius did not define the nature of the compulsion to be exercised, modern writers have generally held that what he meant was compulsion by artillery. If Grotius was the author of the dictum of 1610, he must have had reasons for expressing it 550 in a less definite form in 1625,—perhaps owing to his employment at that time by the Queen of Sweden, to whom the naked doctrine would have been no more attractive than to James.

For a long time, however, the doctrine was equally neglected by publicists and statesmen. This may have been partly due to the somewhat obscure and incidental way in which it was advanced, but probably mainly to the fact that the time was not ripe for its acceptance. It represented much too stringent a limitation of the territorial sea to receive general assent. Selden does not refer to it, and it was passed over by the authors, such as Pontanus,997 Burgus,998 Shookius,999 Conringius,1000 and Strauchius,1001 who favoured more or less extensive claims to maritime dominion, while even writers who opposed such claims, as Stypmannus1002 and Graswinckel,1003 do not adopt it.

The opinions of Grotius with respect to the appropriation of the sea had, indeed, comparatively little influence among jurists in the seventeenth century. The views which prevailed in the latter part of the period are rather represented in the works of two of the writers whose reputation was greatest, Loccenius and Puffendorf. Loccenius, a Swedish author who wrote about the middle of the century and is still quoted as an authority, declared that while a nation could not acquire a universal dominion over the sea, it might possess sovereignty in a particular sea as far as it was under its power or dominion, subject to the rights of innocent passage and navigation by others; and he cited as examples Sweden and Denmark, which exercised sovereignty in the Baltic.1004 As a general rule, however, Loccenius held that states had jurisdiction only in the waters adjacent to their coasts, for the preservation of peaceful navigation; but no attempt is made by him to lay down any fixed rule or limit as to the extent of such jurisdiction. He merely contrasts the opinions of those, as Baldus and Bodin, who contended for a wide limit of sixty miles, or two days’ 551 journey, with those who argue for a narrow but undefined space in the neighbouring sea.

The celebrated Puffendorf, whose authority later was only second to that of Grotius, dealt with the question in his great work on the Law of Nature and Nations, and with even less precision than Loccenius.1005 On the general question of the appropriation of the sea he discarded the objection that its fluidity rendered it incapable of possession, but held that it would be morally impossible for one nation to possess the ocean. He also set aside the moral objection in the absolute form in which it was put forward by Grotius, that the use of the sea was inexhaustible. On the contrary, he held with Selden and Welwood that fisheries in the sea might be exhausted by promiscuous use. “If all nations,” he said, “should desire such a right and liberty (of fishing) near the coasts of any particular country, that country must be very much prejudiced in this respect; especially since it is very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the bordering people should not rather challenge to themselves this happiness of a wealthy shore or sea, than those who are situated at a distance from it.”1006 On this ground, the right of exclusive fishing, and also for the security and defence of the state, a nation was justified in claiming dominion in the neighbouring sea. The extent of this territorial sea, he says, cannot in general be accurately determined; but it is clear that he thought it might be very considerable. We had the power to abridge others of the use of the sea by forts on shore, in narrow creeks and straits, or by armed fleets; but it would, he thought, show unreasonable jealousy to claim “some hundreds of leagues.” The true bounds could only be discovered either from “the right of possession” of a state, or from its treaties with its neighbours. Gulfs, channels, or arms of the sea, on the other hand, were “according to the regular course” supposed to belong to the state which had possession of the shores. If the shores belonged to several peoples, the sovereignty was distributed to the middle line, unless treaties directed otherwise, or one 552 people had obtained the exclusive sovereignty by convention, conquest, or prescription.

We thus perceive that the opinion of jurists at the end of the seventeenth century with regard to the appropriation of the sea was very much what it was at the beginning. With the exception of the clear and terse declaration of the Dutch ambassadors in 1610, and the somewhat dubious dictum of Grotius in 1625, the principle that the maritime sovereignty of a state was limited by the range of guns from the shore does not appear to have been advanced throughout the century.

Nor does an examination of the usage of nations during the period show that the opinions of publicists were at variance with the actual practice. All maritime countries enforced an unquestionable jurisdiction, more or less extensive, in the neighbouring seas, and several of them exercised dominion over particular regions. The extravagant pretensions of Spain and Portugal had long since vanished; but Venice, while sadly fallen from her former greatness, still asserted her sovereignty over the Adriatic. Sweden and Denmark possessed a joint sway over the Baltic; and Denmark maintained her claim to the northern seas between Iceland, Greenland, and the coast of Europe. Moreover, the pretensions of England to the sovereignty of the so-called British seas, although in abeyance, had not been withdrawn. The striking of the flag was still enforced by English men-of-war, and there was nothing to prove that the other phases of the pretension might not be revived at any time.

With regard to the extent of neutral waters, it would appear that the boundaries were as a rule vague, and that general considerations determined jurisdiction in particular cases. In connection with the declaration of war by the United Provinces against France in 1689, a placard was issued by the States-General in which both Dutch and foreign vessels were exhorted to keep out on the high seas; and it was declared that any vessels suspected of having contraband goods on board and found “on the coast of France, or of other countries, islands, and places under the dominion of the King of France, and particularly in the bays and gulfs on the coast of the said kingdom,” would be seized and brought to trial.1007 On the English coast the 553 limits of jurisdiction were better defined, but still, in many cases, without precision. Within the King’s Chambers, as specified by James I. in 1604, “or other places of our dominion, or so near to any of our said ports, or havens, as may be reasonably construed to be within that title, limit, or precinct,” the hostile acts of belligerents, captures of the enemy’s vessels, and the hovering of foreign ships of war were forbidden. The injunction with respect to the neutral waters was renewed in 1633, 1668, and 1683, and it was in no case confined strictly to the “chambers.” In the proclamations of 1668 and 1683, which were drawn up by Sir Leoline Jenkins, the definition was merely “within our ports, havens, roads, and creeks, as also in every other place or tract at sea that may be reasonably construed to be within any of these denominations, limits, or precincts.”1008 These limits were upheld by the decisions of the High Court of Admiralty during the greater part of the century. Sir Leoline Jenkins, it may be noted, although in questions of international policy advocating the most extreme pretensions of the English crown to the sovereignty of the seas, was careful in his judicial decisions to restrict jurisdiction within the terms of the royal proclamations. If a capture was made in one of the chambers or beyond them by a foreign privateer which had issued from an English port and had been hovering in the neighbourhood, the vessel was ordered to be restored. So also if the prize was taken, in any case, outside a chamber, but near enough the coast to be “reasonably construed” to be within the king’s jurisdiction. This usually happened on the east coast, where the chambers were small. In one such case the vessel was taken between half a league and one league off Orfordness (the headland of a chamber); in another instance the vessel was seized eight leagues at sea off Harwich, and presumably four leagues from the boundary of the nearest chamber.1009 554

At the end of the seventeenth century, while the old pretensions of various nations to the appropriation of particular seas had not been withdrawn, they had in many cases become by the force of circumstances to a large extent nominal or were in abeyance. There was moreover a tendency, as we have seen (p. 526), to substitute fixed boundaries in place of a wide and vague sovereignty, and to arrange by treaty defined limits for special purposes. In the historical retrospect we can now perceive the main influences which led to the modification of the claims and practice in the century that followed. The juridical controversies on the subject between the writers of various nations were doubtless not without effect. The repeated decisions of the High Court of Admiralty in this country, going counter to the English pretension even in the Channel, and fixing limits for neutrality, must also have had an important influence. But the chief causes were probably twofold. One was the moral and material victory of the Dutch Republic in its long and persistent struggle against the exorbitant claims to maritime dominion, first, of Spain and Portugal, and then of England and Denmark. The other was the great extension of commerce and navigation, in which England secured an ever-increasing share, so that in the next century we find her taking the part of Holland in opposing the Danish claims to mare clausum. As maritime commerce 555 extended and the security of the sea became established, it was felt more and more that claims to a hampering sovereignty and jurisdiction were incompatible with the general welfare of nations; and as the states interested in this commerce had the greatest power, the assertion of a wide dominion was gradually abandoned, surviving only in remote regions or in enclosed seas, like the Baltic.

At the beginning of the eighteenth century the question of the appropriation of the sea was placed on another footing. The principle of delimiting the territorial sea which is now generally accepted was first expounded in 1703 by a distinguished publicist, Cornelius van Bynkershoek, who, like Grotius, was a Dutchman, and held the office of Judge in the Supreme Court of Appeal of Holland, Zealand, and West Friesland. In his early work on the dominion of the sea,1010 and in a later treatise published in 1737,1011 he dealt with the subject with much acumen. With respect to the general question as to the capability of appropriation, he agreed with Puffendorf rather than with Grotius. While holding that the open ocean could not be wholly brought under dominion, he admitted, with Selden, not only that large parts of the sea are susceptible of appropriation, but that various nations had at different times enjoyed such dominion: the fluidity of the sea was not a bar to its occupation, and by taking possession of it the same right was acquired as by taking possession of the land. But he declared there was no instance at the time he wrote of any ruler possessing maritime dominion of that kind, unless when the surrounding territory belonged to him, and that the general freedom of the seas for navigation had been established both by usage and by various treaties. He denied that England had the dominion of the so-called British seas, mainly on the ground of the want of uninterrupted possession, pointing out that all the neighbouring nations freely navigated them without paying any tribute or requiring any permission.

It was, however, with regard to the delimitation of the territorial sea immediately adjacent to the coast that Bynkershoek’s teaching had its chief results. He showed how uncertain 556 and unsatisfactory were the limits previously proposed, and, following Grotius, he laid down the principle that the dominion of a state extended over the neighbouring sea as far, and only as far, as it was able to command and control it from............